glasser v. united states, 315 u.s. 60 (1942)
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315 U.S. 60
62 S.Ct. 457
86 L.Ed. 680
GLASSER
v.
UNITED STATES. KRETSKE v. SAME. ROTH v. SAME.
Nos. 30—32.
Argued and Submitted Nov. 13, 14, 1941.
Decided Jan. 19, 1942.
Rehearing Denied Feb. 9, 1942.
See 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. —-.
[Syllabus from pages 60-62 intentionally omitted]
Messrs. Homer Cummings, of Washington, D.C., Ralph M. Snyder, of
Chicago, Ill., and William D. Donnelly, of Washington, D.C., for
petitioner Glasser.
Mr. Edward M. Keating, of Chicago, Ill., for petitioner Kretske.
Mr. Alfred E. Roth, of Chicago, Ill., pro se.
Mr. Edwin D. Dickinson, of Washington, D.C., for respondent.
Mr. John Elliott Byrne, of Chicago, Ill., for petitioner Glasser as amicus
curiae.
Mr. Justice MURPHY delivered the opinion of the Court.
1 Petitioners, together with Anthony Horton and Louis Kaplan, were found guilty
upon an indictment charging them with a conspiracy to defraud the United
States under Section 37 of the Criminal Code, R.S. § 5440, 18 U.S.C. § 88, 18
U.S.C.A. § 88.1 Judgment was entered on the verdict and Glasser, Kretske, andKaplan were sentenced to imprisonment for a term of 14 months. Roth was
ordered to pay a fine or $500 and Horton was placed on probation. On appeal
the convictions of Glasser, Kretske and Roth were affirmed.2 We brought the
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case here because of the important constitutional issues involved. 313 U.S. 551,
61 S.Ct. 835, 85 L.Ed. 1515.
2 Glasser was the assistant United States attorney in charge of liquor cases in the
Northern District of Illinois from about March 1935 to April 1939. Kretske was
an assistant United States attorney in the same district from October 1934 until
April 1937. He assisted Glasser in the prosecution of liquor cases. After hisresignation be entered private practice in Chicago. Roth was an attorney in
private practice. Kaplan was an automobile dealer reputed to be engaged in the
illicit alcohol traffic around Chicago. Horton was a professional bondsman.
3 The indictment was originally in two counts but only the second survives here
as the Government elected to proceed on that count alone at the close of its
case. That count, after alleging that during certain periods Glasser and Kretske
were assistant United States attorneys for the Northern District of Illinois,employed to prosecute all delinquents for crimes and offenses cognizable under
the authority of the United States, and more particularly violations of the
federal internal revenue laws relating to liquor, charged in substance that the
defendants conspired to 'defraud the United States of and concerning its
governmental function to be honestly, faithfully and dutifully represented in the
courts of the United States' in such matters 'free from corruption, improper
influence, dishonesty, or fraud.' The means by which the conspiracy was to be
accomplished was alleged to be by the defendants' soliciting certain personscharged, or about to be charged, with violating the laws of the United States, to
promise or cause to be promised certain sums to be paid or pledged to the
defendants to be used to corrupt and influence the defendants Glasser and
Kretske, and the defendant Glasser alone in the performance of their and his
official duties.
4 All the defendants filed a motion to quash the indictment on the ground (a) that
the grand jury was illegally constituted because women were excludedtherefrom and (b) that the indictment was not properly returned in open court.
Glasser, Kretske and Roth also filed demurrers to the indictment. The motion to
quash and the demurrers were overruled and petitioners here renew their
objections.
5 On July 1, 1939 two acts of the State of Illinois providing for women jurors
became effective.3 Section 275 of the Judicial Code, 28 U.S.C. § 411, 28
U.S.C.A. § 411, provides in substance that jurors in a federal court are to have
the qualifications of jurors in the highest court of the State. Petitioners contend
that the grand jury, composed entirely of men, and summoned on August 25,
1939, was illegally constituted because at the time it was drawn Illinois law
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required state jury lists to contain the names of women. However, in 17 of the
18 counties comprising the Northern District of Illinois the county boards could
wait until September, 1939, to include women on their jury lists.4 Of course, for
women to serve as federal jurors in Illinois it is not necessary that their names
appear on a county list, but we are of opinion that, in view of the short time
elapsing between the effective date of the Illinois acts and the summoning of
the grand jury, it was not error to omit the names of women from federal jurylists where it was not shown that women's names had yet appeared on the state
jury lists.
6 The record here adequately disposes of petitioners' contention that there is no
showing that the indictment was returned in open court by the grand jury. It
contains a placita in regular form which recities the convening of a regular term
of the District Court for the Eastern Division of the Northern District of Illinois,
'on the first Monday of September (1939) (it being the twenty-ninth day of September the indictment was filed)', and discloses the presence of the judges
of that court, the marshal and the clerk. The indictment bears the notation: 'A
true bill, George A. Hancock, Foreman' and the endorsement: 'Filed in open
court this 29th day of Sept., A.D. 1939, Hoyt King, Clerk.' Immediately
following the indictment in the record is the motion-slip discharging the
September grand jury, dated September 29, 1939, initialled by Judge Wilkerson
and containing: 'The Grand Jury return 4 Indictments in open Court. Added
10/30/39'. The presence of this notation in the record is meaningless unless theindictment in this case is one of the four mentioned. The addition was
obviously made to clarify the indorsement of the clerk so as to show clearly the
return by the grand jury and thus avert the technical argument here advanced.
While a formal nunc pro tunc order would have been the more correct
procedure, especially since a new term of court had begun, we do not think that
this informal clarification of the record amounts to such error as requires
reversal. Cf. Breese v. United States, 226 U.S. 1, 33 S.Ct. 1, 57 L.Ed. 97.
7 The demurrers to the indictment were properly overruled. The indictment is
sufficiently definite to inform petitioners of the charges against them. It shows
'certainty, to a common intent'. Williamson v. United States, 207 U.S. 425, 447,
28 S.Ct. 163, 170, 171, 52 L.Ed. 278. The particularity of time, place,
circumstances, causes, etc., in stating the manner and means of effecting the
object or a conspiracy for which petitioners contend is not essential to an
indictment. Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed.
465, 15 Ann.Cas. 392; Dealy v. United States, 152 U.S. 539, 14 S.Ct. 680, 38L.Ed. 545. Such specificity of detail falls rather within the scope of a bill of
particulars, which petitioners requested and received.
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8 The indictment charges that the United States was defrauded by depriving it of
its lawful governmental functions by dishonest means; it is settled that this is a
'defrauding' within the meaning of Section 37 of the Criminal Code.
Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968.
9 It is unnecessary to explore the merits of the argument that the indictment isdefective on the ground that it charges a conspiracy to commit a substantive
offense requiring concerted action namely, bribery, because, 'The indictment
does not charge as a substantive offense the giving or receiving of bribes; nor
does it charge a conspiracy to give or accept bribes. It charges 'a conspiracy to *
* * defraud the United States, the scheme of resorting to bribery being averred
only to be a way of consummating the conspiracy and which, like the use of a
gun to effect a conspiracy to murder, is purely ancillary to the substantive
offense.' United States v. Manton, 2 Cir., 107 F.2d 834, 839.
10 Petitioners Glasser and Roth claim that the evidence was insufficient to support
the verdict. Kretske makes no such argument but merely contends that the
government's testimony was largely that of accomplices 'to emphasize the
inescapable conclusion that the evidence against petitioner (Kretske) was of a
borderline character.' Since we are of opinion that a new trial must be ordered
as to Glasser, we do not at this time feel that it is proper to comment on the
sufficiency of the evidence against Glasser.
11 Admittedly the case against Glasser is not a strong one. The Government
frankly concedes that the case with respect to Glasser 'depends in large part * *
* upon a development and collocation of circumstances tending to sustain the
inferences necessary to support the verdict'. This is significant in relation to
Glasser's contention that he was deprived of the assistance of counsel contrary
to the Sixth Amendment. In all cases the constitutional safeguards are to be
jealously preserved for the benefit of the accused, but especially is this truewhere the scales of justice may be delicately poised between guilt and
innocence. Then error, which under some circumstances would not be ground
for reversal, cannot be brushed aside as immaterial since there is a real chance
that it might have provided the slight impetus which swung the scales toward
guilt.
12 On November 1, 1939 George Callaghan entered the appearance of himself and
Glasser as attorneys for Glasser. On January 29, 1940 William Scott Stewartentered his appearance as associate counsel for Glasser. 'Harrington &
McDonnell' had entered an appearance for Kretske. On February 5, 1940, the
day set for trial, Harrington asked for a continuance. The motion was overruled
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and McDonnell was appointed Kretske's attorney. On February 6 McDonnell
informed the court that Kretske did not wish to be represented by him. The
court then asked if Stewart could act as Kretske's attorney. The following
discussion then took place:
13 'Mr. Stewart: May I make this statement about that, judge? We were talking
about it—we were all trying to get along together. I filed an affidavit, or I didon the behalf of Mr. Glasser pointing out some little inconsistency in the
defense, and the main part of it is this: There will be conversations here where
Mr. Glasser wasn't present, where people have been Mr. Kretske and they have
talked about, that they gave money to take care of Glasser, that is not binding
on Mr. Glasser, and there is a divergency there, and Mr. Glasser feels that if I
would represent Mr. Kretske the jury would get an idea that they are together,
and all the evidence—
14 'The Court: How would it be if I appointed you as attorney for Kretske?
15 'Mr. Stewart: That would be for your Honor to decide.
16 'The Court: I know you are looking out for every possible legitimate defense
there is. Now, if the jury understood that while you were retained by Mr.
Glasser the Court appointed you at this late hour to represent Kretske, whatwould be the effect of the jury on that?
17 'Mr. Stewart: Your Honor could judge that as well as I could.
18 'The Court: I think it would be favorable to the defendant Kretske.
19 'Mr. Glasser: I think it would be too, if he had Mr. Stewart. That's the reason I
got Mr. Stewart, but if a defendant who has a lawyer representing him is
allowed to enter an objection, I would like to enter my objection. I would like to
have my own lawyer representing me.
20 'The Court: Mr. McDonnell, you will have to stay in it until Mr. Kretske gets
another lawyer, if he isn't satisfied with you.
21 '(To Mr. Kretske) Mr. Kretske, if you are not satisfied with Mr. McDonnell,you will have to hire another lawyer. We will proceed with the selection of the
jury now.'
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22 A colloquy then ensued between the court, McDonnell and Kretske when the
following occurred:
23 'Mr. Kretske: I can end this. I just spoke to Mr. Stewart and he said if your
Honor wishes to appoint him I think we can accept the appointment.
24 'Mr. Stewart: As long as the Court knows the situation. I think there is
something to the fact that the jury knows that we can't control that.
25 'Mr. McDonnell: Then the order is vacated?
26 'The Court: The order appointing Mr. McDonnell is vacated and Mr. Stewart is
appointed attorney for Mr. Kretske.'
27 Glasser remained silent. Stewart thereafter represented Glasser and Kretske
throughout the trial and was the most active of the array of defense counsel.
28 The guarantees of the Bill of Rights are the protecting bulwarks against the
reach of arbitrary power. Among those guarantees is the right granted by the
Sixth Amendment to an accused in a criminal proceeding in a federal court 'to
have the Assistance of Counsel for his defence'. 'This is one of the safeguards ** * deemed necessary to insure fundamental human rights of life and liberty'
and a federal court cannot constitutionally deprive an accused whose life or
liberty is at stake of the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458,
462, 463, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461. Even as we have held that the
right to the assistance of counsel is so fundamental that the denial by a state
court of a reasonable time to allow the selection of counsel of one's own
choosing, and the failure of that court to make an effective appointment of
counsel, may so offend our concept of the basic requirements of a fair hearing
as to amount to a denial of due process of law contrary to the Fourteenth
Amendment, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84
A.L.R. 527, so are we clear that the 'Assistance of Counsel' guaranteed by the
Sixth Amendment contemplates that such assistance be untrammeled and
unimpaired by a court order requiring that one lawyer shall simultaneously
represent conflicting interests. If the right to the assistance of counsel means
less than this, a valued constitutional safeguard is substantially impaired.
29 To preserve the protection of the Bill of Rights for hard-pressed defendants, we
indulge every reasonable presumption against the waiver of fundamental rights.
Aetna Insurance Co. v. Kennedy, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177;
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Ohio Bell Telephone Co. v. Public Utilities Commission, 301 U.S. 292, 57
S.Ct. 724, 81 L.Ed. 1093. Glasser never affirmatively waived the objection
which he initially advanced when the trial court suggested the appointment of
Stewart. We are told that since Glasser was an experienced attorney, he tacitly
acquiesced in Stewart's appointment because he failed to renew vigorously his
objection at the instant the appointment was made. The fact that Glasser is an
attorney is, of course, immaterial to a consideration of his right to the protectionof the Sixth Amendment. His professional experience may be a factor in
determining whether he actually waived his right to the assistance of counsel.
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461. But
it is by no means conclusive.
30 Upon the trial judge rests the duty of seeing that the trial is conducted with
solicitude for the essential rights of the accused. Speaking of the obligation of
the trial court to preserve the right to jury trial for an accused Mr. JusticeSutherland said that such duty 'is not to be discharged as a mere matter of rote,
but with sound and advised discretion, with an eye to avoid unreasonable or
undue departures from that mode of trial or from any of the essential elements
thereof, and with a caution increasing in degree as the offenses dealt with
increase in gravity.' Patton v. United States, 281 U.S. 276, 312, 313, 50 S.Ct.
253, 263, 74 L.Ed. 854, 70 A.L.R. 263. The trial court should protect the right
of an accused to have the assistance of counsel. 'This protecting duty imposes
the serious and weighty responsibility upon the trial judge of determiningwhether there is an intelligent and competent waiver by the accused. While an
accused may waive the right to counsel, whether there is a proper waiver
should be clearly determined by the trial court, and it would be fitting and
appropriate for that determination to appear upon the record.' Johnson v.
Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461.
31 No such concern on the part of the trial court for the basic rights of Glasser is
disclosed by the record before us. The possibility of the inconsistent interests of Glasser and Kretske was brought home to the court, but instead of jealously
guarding Glasser's rights, the court may fairly be said to be responsible for
creating a situation which resulted in the impairment of those rights. For the
manner in which the parties accepted the appointment indicates that they
thought they were acceding to the wishes of the court. Kretske said the
appointment could be accepted 'if your Honor wishes to appoint him (Stewart)',
and Stewart immediately replied: 'As long as the Court knows the situation. I
think there is something in the fact that the jury knows we can't control that.'The court made no effort to reascertain Glasser's attitude or wishes. Under
these circumstances to hold that Glasser freely, albeit tacitly, acquiesced in the
appointment of Stewart is to do violence to reality and to condone a dangerous
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laxity on the part of the trial court in the discharge of its duty to preserve the
fundamental rights of an accused.
32 Glasser urges that the court's appointment of Stewart as counsel for Kretske
embarrassed and inhibited Stewart's conduct of his defense in that it prevented
Stewart from adequately safeguarding Glasser's right to have incompetent
evidence excluded and from fully cross-examining the witnesses for the prosecution.
33 One Brantman, an accountant known to Kretske and recommended
professionally by him to a client, testified that he gave Kretske $300 on behalf
of one Abosketes. He further testified that he did not know Glasser. Stewart
secured a postponement of cross-examination for 'In view of the fact that your
Honor appointed me for Mr. Kretske, I am not prepared to cross-examine.'
34 Abosketes took the stand immediately after Brantman and testified that
Brantman told him that he was about to be indicted and offered to 'fix' the case
with someone in the Federal Building for $5000. About the time of this meeting
Glasser and investigator Bailey were questioning one Brown, who had been
convicted for operating a still, to determine whether Abosketes was connected
with that still. Abosketes referred frequently to Glasser in his testimony and
indicated that Glasser and Brantman were linked together. Thus he testified that
Brantman told him 'They have got the goods on you, Mr. Glasser has got in out
of Brown.' When questioned as to his knowledge of Brantman's connections,
Abosketes replied: 'There was more than a fix, if indictment was stopped. He
(Brantman) knows Mr. Glasser and that was all there was to it.' And, later: 'He
had connections to stop things like that, he had connections in the Federal
Building.' And, again: 'I could not be sure that this man (Brantman) was not
putting a shake on me and be honest about it. I could not go over and ask Mr.
Glasser if Mr. Brantman was able to fix him. I thought Brantman could,
though. I was kind of hoping he could. If I did not think he could, I would nothave given him the money.'
35 Brantman was re-called three days later. Stewart declined cross-examination.
That this decision was influenced by a desire to protect Kretske can reasonably
be inferred from the colloquy between the court and Stewart before sentence
was imposed. At that time Stewart told the court that, lest his failure to cross-
examine Brantman reflect on Kretske, the reason for his forbearance was that
he feared that Brantman would tell worse lies. But, especially after the
intervening testimony of Abosketes, a thorough cross-examination was
indicated in Glasser's interest to fully develop Brantman's lack of reference to,
or knowledge of Glasser. Stewart's failure to undertake such a cross-
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examination luminates the cross-purposes under which he was laboring.
36 Glasser also argues that certain testimony, inadmissible as to him was allowed
without objection by Stewart on his behalf because of Stewart's desire to avoid
prejudice to Kretske. The testimony complained of is that Elmer Swanson,
Frank Hodorowicz, Edward Dewes, and Stanley Wasielewski as to statements
made by Kretske, not in the presence of Glasser, and heard by them whichimplicated Glasser. Glasser has red hair, and the statements made by Kretske
were that he would have to see 'Red', or send the money over to the 'red-head',
etc., in connection with 'fixing' cases.5
37 Glasser contends that such statements constituted inadmissible hearsay as to
him and that Stewart forewent this obvious objection lest an objection on
behalf of Glasser alone leave with the jury the impression that the testimony
was true as to Kretske. The Government attacks this argument as unsound, and,relying on the doctrine that the declarations of one conspirator in furtherance of
the objects of the conspiracy made to a third party are admissible against his co-
conspirators, Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429,
contends that the declarations of Kretske were admissible against Glasser and
hence no prejudice could arise from Stewart's failure to object. However, such
declarations are admissible over the objection of an alleged co-conspirator, who
was not present when they were made, only if there is proof aliunde that he is
connected with the conspiracy. Minner v. United States, 10 Cir., 57 F.2d 506;and see Nudd v. Burrows, 91 U.S. 426, 23 L.Ed. 286. Otherwise hearsay would
lift itself by its own bootstraps to the level of competent evidence.
38 Glasser urges that independent of the statements complained of there is no
proof connecting him with the conspiracy. Clearly the statements were
damaging. Other evidence tending to connect Glasser with the conspiracy is
rather meagre by comparison. Frank Hodorowicz testified that Glasser
apologized to him after his indictment because he, Glasser, could do nothingfor Hodorowicz. Hodorowicz also testified that he sent a case of whiskey to
Glasser for Christmas, 1937. Victor Raubunas testified that he saw Glasser,
Kretske and Kaplan meet on three occasions. An alcohol agent, Dowd, testified
that Glasser expelled him from the court-room during the trial of a libel case in
which Roth represented the successful claimant. Glasser released Raubunas and
one Joppek, who were picked up on different occasions for suspected liquor
violations, without extensive questioning. Whether testimony such as this was
sufficient to establish the participation of Glasser in the conspiracy we need notdecide. That is beside the point. The important fact is that no objection was
offered by Stewart on Glasser's behalf to the statements complained of, and this
despite the fact that, when the court broached the possibility of Stewart's
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appointment, Stewart told the court that statements of this nature were not
binding on Glasser. That this is indicative of Stewart's struggle to serve two
masters cannot seriously be doubted.
39 There is yet another consideration. Glasser wished the benefit of the undivided
assistance of counsel of his own choice. We think that such a desire on the part
of an accused should be respected. Irrespective of any conflict of interest theadditional burden of representing another party may conceivably impair
counsel's effectiveness.
40 To determine the precise degree of prejudice sustained by Glasser as a result of
the court's appointment of Stewart as counsel for Kretske is at once difficult
and unnecessary. The right to have the assistance of counsel is too fundamental
and absolute to allow courts to indulge in nice calculations as to the amount of
prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U.S. 97,116, 54 S.Ct. 330, 336, 78 L.Ed. 674, 90 A.L.R. 575; Tumey v. Ohio, 273 U.S.
510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 50 A.L.R. 1243; Patton v. United
States, 281 U.S. 276, 292, 50 S.Ct. 253, 256, 74 L.Ed. 854, 70 A.L.R. 263. And
see McCandless v. United States, 298 U.S. 342, 347, 56 S.Ct. 764, 766, 80
L.Ed. 1205. Of equal importance with the duty of the court to see that an
accused has the assistance of counsel is its duty to refrain from embarrassing
counsel in the defense of an accused by insisting, or indeed, even suggesting
that counsel undertake to concurrently represent interests which might divergefrom those of his first client, when the possibility of that divergence is brought
home to the court. In conspiracy cases, where the liberal rules of evidence and
the wide latitude accorded the prosecution may, and sometimes do, operate
unfairly against an individual defendant, it is especially important that he be
given the benefit of the undivided assistance of his counsel without the court's
becoming a party to encumbering that assistance. Here the court was advised of
the possibility that conflicting interests might arise which would diminish
Stewart's usefulness to Glasser. Nevertheless Stewart was appointed asKretske's counsel. Our examination of the record leads to the conclusion that
Stewart's representation of Glasser was not as effective as it might have been if
the appointment had not been made. We hold that the court thereby denied
Glasser his right to have the effective assistance of counsel, guaranteed by the
Sixth Amendment. This error requires that the verdict be set aside and a new
trial ordered as to Glasser.
41 But this error does not require that the convictions of the other petitioners be setaside. To secure a new trial they must show that the denial of Glasser's
constitutional rights prejudiced them in some manner, for where error as to one
defendant in a conspiracy case requires that a new trial be granted him, the
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rights of his co-defendants to a new trial depend upon whether that error
prejudiced them. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed.
145; United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84
L.Ed. 1129; Rossi v. United States, 9 Cir., 278 F. 349; Belfi v. United States, 3
Cir., 259 F. 822; Browne v. United States, 2 Cir., 145 F. 1; Dufour v. United
States, 37 App.D.C. 497. Kretske does not contend that he was prejudiced by
the appointment, and we are clear from the record that no prejudice is disclosedas to him. Roth argues the point, but he was represented throughout the case by
his own attorney. We fail to see that the denial of Glasser's right to have the
assistance of counsel affected Roth.
42 Turning now to the contentions of Kretske and Roth, we are clear that
substantial evidence supports the verdict against both. As noted before, Kretske
does not raise the point other than to mention that the testimony against him
was largely that of accomplices and unsavory characters. The short answer tothis is that the credibility of witness is a question for the jury.
43 The evidence against Roth discloses the following salient facts. Elmer
Swanson, Clem Dowiat and Anthony Hodorowicz were arrested in connection
with a still on Stony Island Avenue. Frank Hodorowicz, the head of the
Hodorowicz crowd, arranged a meeting with Kretske at his hardware store to
'take care' of the case. Horton was present and Kretske told the group that there
'was a lot of heat' on the case but that it could be arranged so that nobody'would go to jail' for $1200, part of which 'Red' was to get. A down payment of
$500 was made. When a lawyer was sought, Kretske referred the prospective
defendants to Roth. He represented them at the hearing before the
Commissioner which was continued at the request of Glasser. After an
indictment was returned, Roth appeared for trial to find that the case had been
stricken from the docket with leave to reinstate it. The defendants were never
brought to trial. None of the Hodorowiczes or their associates paid Roth for his
services. Roth testified that he received his fee from Kretske.
44 In June 1938 Glasser secured two indictments, one against Frank, Mike, and
Peter Hodorowicz and Clem Dowiat, and the other against Frank, and Peter
Hodorowicz and Dowiat for the sale of illicit alcohol. Frank paid Kretske $250
after the indictments. Kretske later told him that nothing could be done as
investigator Bailey was pressing Glasser. Frank then went to see Roth, who
with Kretske went to see Glasser. Roth later told Frank that nothing could be
done and suggested that he get an attorney and prepare to defend himself.Roth's explanation of this was that he went to Glasser to learn the latter's
attitude toward clemency for Frank, and that he suggested the retention of two
lawyers, one to defend Frank, and the other to represent the remaining
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defendants. Frank dispensed with Roth's services and was represented at the
trial by one Hess. Frank paid Roth $50, but this was in connection with
substituting some securities on his bond.
45 Edward Dewes had been associated with the defendant Kaplan in a still at
Spring Grove. That case was twice presented to a grand jury by Glasser but
withdrawn on each occasion. Two days before it was presented a third time thedefendant Horton told Dewes that Kretske wished to see him. Dewes went to
Kretske's office and paid him $100 so that he would not be indicted. Dewes
was no-billed in that case. Dewes was also involved in a still on the farm of one
Beisner. It was raided and several were arrested. Dewes, Victor Raubunas and
Edward Farber asked Horton to 'fix' that case, but when his price was thought
too high, Farber, who had known Kretske for some time, took Dewes and
Raubunas to Kretske's office. Kretske offered to take care of the case for
$1200. Raubunas paid $300 and they were told they would need no lawyer atthe preliminary hearing. Eventually Raubunas, Dewes and Beisner were
indicted. Dewes thereafter paid Kretske $275 to 'fix' his case. Kretske referred
the matter to Roth who represented Dewes throughout his trial. Dewes testified
that he neither retained nor paid Roth.
46 Paul Svec, and associate of one Yarrio, was arrested in 1937 for a liquor
violation. Horton arranged his bond. In Svec's presence Horton picked up
Kretske and Yarrio. They told Svec not to worry. He was thereafter indictedand convicted. While at liberty pending an appeal he was again arrested. This
time he called Glasser, and according to the latter, offered him money. The
following morning Glasser interrogated Svec in the hearing of a secreted agent
of the Federal Bureau of Investigation and secured admissions that Svec had
never paid Glasser money or received any promises from him, and that the call
had been at the instigation of the arresting investigators. Svec testified that
Roth told him that he 'stood up o.k.' under Glasser's questioning. Svec was
discharged at the Commissioner's hearing.
47 Glasser prosecuted Leo Vitale for the operation of a still. He was convicted and
received a sentence of one hour in the custody of the marshal. Vitale's wife,
Rose, was the claimant in a subsequent libel action against a car allegedly used
to transport illicit liquor. The case was referred to Roth by Kretske. Roth
informed the court that Vitale was 'o.k.' and that the car was not used for illegal
purposes. As was the custom, the case was tried on the agent's report. It was
dismissed. Investigator Dowd later informed Glasser that he had heard thatVitale had boasted that 'he got out of this for nine hundred dollars'.
48 In April 1938 Edward and William Wroblewski were indicted in the Northern
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District of Indiana. They engaged Roth as their counsel. They did not remember
how they met Roth. When asked by the court if anyone recommended Roth to
him, Edward answered: 'No, sir, I don't remember whether it was a rumor about
his name.' According to Alexander Campbell, an assistant United States
attorney in that district, Roth appeared in his office in September 1938 and
asked if the Wroblewskis had been indicted. Campbell replied that he did not
know off-hand but would check the files. Roth then asked, if the files showedno indictment, whether some arrangement could be made so that no indictment
would be returned. He offered Campbell $500 or $1000. When Campbell
refused, Roth said: 'Well, that is the way we handle cases in Chicago
sometimes'. The Wroblewskis were convicted. Subsequently Roth asked
Campbell to use his influence to stop the investigation in Chicago by Bailey
which resulted in the instant case.
49 It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to support it.
United States v. Manton, 2 Cir., 107 F.2d 834, 839, and cases cited.
Participation in a criminal conspiracy need not be proved by direct evidence; a
common purpose and plan may be inferred from a 'development and
collocation of circumstances'. United States v. Manton, supra. We are clear that
from the circumstances outlined above the jury could infer the existence of a
conspiracy and the participation of Roth in it. Roth's statements to Campbell inthe Wroblewski matter, his suggestion to Frank Hodorowicz that he should get
a lawyer and prepare to defend himself when the case could not be 'fixed', the
fact that he received no fees from the Hodorowiczes with the exception of $50
in connection with Frank's bond, Dewes' testimony that he neither retained nor
paid Roth, Roth's commendation of Svec's bearing under Glasser's
interrogation, all furnish the necessary support for the jury's verdict.
50 The objections of Kretske and Roth with regard to the admission of certainevidence are without merit. The reports of investigators of the Alcohol Tax
Unit on stills at Western Avenue and at Spring Grove, operated by the
defendant Kaplan and his associates, were admitted as Government exhibits
81A and 113. Each contained statements taken from prospective witnesses by
the investigators, and each gave a description of the prospective defendants.
Kaplan was referred to as of Jewish descent, a bootlegger by reputation, and
mention was made of the arrest of Kaplan and Edward Dewes in connection
with the killing of one Pinna. At the time each report was admitted the trial judge informed the jury that it was admitted only against Glasser and
continued: 'At some further stage of the proceedings I may advise you with
reference to its competency as to the other defendants, but for the time being it
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will be admissible only against the defendant Glasser'. The record before us
contains no indication that the jury was later informed that the exhibits were
evidence against the defendants other than Glasser. The claim of Kretske and
Roth that the admission of these reports was prejudicial to Kaplan and that they
are entitled to take advantage of that error ignores the fact that they were
admitted against Glasser alone.
51 No reversible error was committed by overruling objections to the testimony of
Alexander Campbell with relation to his dealings with Roth. Trial judges have a
measure of discretion in allowing testimony which discloses the purpose,
knowledge, or design of a particular person. Butler v. United States, 10 Cir., 53
F.2d 800; Simpkins v. United States, 4 Cir., 78 F.2d 594, 598. We do not think
the bounds of that discretion were exceeded here. The statements of Roth were
not in furtherance of the conspiracy, but they did tend to connect Roth with it
by explaining his state of mind.
52 The judge conducting a jury trial in a federal court is 'not a mere moderator, but
is the governor of the trial for the purpose of assuring its proper conduct'.
Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321.
Upon him rests the responsibility of striving for that atmosphere of perfect
impartiality which is so much to be desired in a judicial proceeding. Petitioners
contend that the trial judge made remarks prejudicial to them, committed acts
of advocacy, questioned them in a hostile manner, unduly limited cross-examination, and in general failed to maintain an impartial attitude. Various
incidents in support of those contentions are brought to our attention.
53 The court did interrogate several witnesses, but in the main such interrogation
was within its power to elicit the truth by an examination of the witnesses.
United States v. Gross, 7 Cir., 103 F.2d 11; United States v. Breen, 2 Cir., 96
F.2d 782. In asking Anthony Hodorowicz whether there had been a full
disclosure of his connection with the Stony Island still when he appeared beforeJudge Woodward the court obviously was under a misapprehension of the
nature of the appearance. It was simply for the purpose of arraignment, and of
course no testimony was offered. Much is made of this, but at the time no one
attempted to explain to the court the nature of the appearance. Stewart later
brought out on cross-examination that it was only an arraignment and that there
was no necessity for testimony on that day.
54 After the testimony of Abosketes the court read into the record the fact that
Abosketes was indicted in Wisconsin in 1936 and 1938, and that he pleaded
guilty to one indictment and that the other was dismissed. It is, of course,
improper for a judge to assume the role of a witness, but we cannot here
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conclude that prejudicial error resulted. Abosketes had briefly referred to his
troubles in Wisconsin in his testimony.
55 The alleged undue limitation of cross-examination merits scant attention. The
extent of such examination rests in the sound discretion of the trial court.
Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. We find no
abuse of that discretion.
56 Perhaps the court did not attain at all times that thoroughgoing impartiality
which is the ideal, but our examination of the record as a whole leads to the
conclusion that the substantial rights of the petitioners were not affected. The
trial was long and the incidents relied on by petitioners few. We must guard
against the magnification on appeal of instances which were of little importance
in their setting. Cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150,
240, 60 S.Ct. 811, 852, 84 L.Ed. 1129; Goldstein v. United States, 8 Cir., 63F.2d 609; United States v. Warren, 2 Cir., 120 F.2d 211.
57 Separate consideration of the numerous instances of alleged prejudicial
misconduct on the part of the prosecuting attorney would unduly extend this
opinion. Suffice it to say that after due consideration we conclude that no one
instance, nor the combination of them all constitutes reversible error.
58 All the petitioners contend that they were denied an impartial trial because of
the alleged exclusion from the petit jury panel of all women not members of the
Illinois League of Women Voters. In support of their motions for a new trial
Glasser and Roth filed affidavits which are the basis of petitioners' present
contentions. Kretske did not file an affidavit, but he urges the point here.
59 Glasser swore on information and belief that all the names of women placed in
the box from which the panel was drawn were taken from a list furnished theclerk of the court by the Illinois League of Women Voters, and prepared
exclusively from its membership, that the women on that list had attended 'jury
classes whose lecturers presented the views of the prosecution', and that women
not members of the League, but otherwise qualified, were systematically
excluded, by reason of which affiant 'did not have a trial by a jury free from
bias, prejudice, and prior instructions, and as a result thereof the jury was
disqualified and this affiant's rights were prejudiced in that he was deprived of a
trial by jury guaranteed to him by the laws and the constitution of the UnitedStates of America, and particularly the 5th and 6th amendment, all of which he
offers to prove.' The source of Glasser's information was stated to be a then
current article, 'Women and the Law', in the American Bar Association Journal
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for April 1940 (Vol. 26, No. 4). Roth's affidavit merely gave Glasser as his
source of information and made no offer of proof. The court overruled the
motions for a new trial. The record discloses that the jury was composed of six
men and six women.
60 Since it was first recognized in Magna Carta, trial by jury has been a prized
shield against oppression, but while proclaiming trial by jury as 'the glory of theEnglish law', Blackstone was careful to note that it was but a 'privilege'.
Commentaries, Book 3, p. 379. Our Constitution transforms that privilege into
a right in criminal proceedings in a federal court. This was recognized by
Justice Story: 'When our more immediate ancestors removed to America, they
brought this great privilege (trial by jury in criminal cases) with them, as their
birthright and inheritance, as a part of that admirable common law which had
fenced round and interposed barriers on every side against the approaches of
arbitrary power. It is now incorporated into all our state constitutions as afundamental right, and the Constitution of the United States would have been
justly obnoxious to the most conclusive objection if it had not recognized and
confirmed it in the most solemn terms.' 2 Story, Const. sec. 1779.
61 Lest the right of trial by jury be nullified by the improper constitution of juries,
the notion of what a proper jury is has become inextricably intertwined with the
idea of jury trial. When the original Constitution provided only that 'The Trial
of all Crimes, except in Cases of Impeachment, shall be by Jury;'6 the peopleand their representatives, leaving nothing to chance, were quick to implement
that guarantee by the adoption of the Sixth Amendment which provides that the
jury must be impartial.
62 For the mechanics of trial by jury we revert to the common law as it existed in
this country and in England when the Constitution was adopted. Patton v.
United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263. But
even as jury trial, which was a privilege at common law, has become a rightwith us, so also, whatever limitations were inherent in the historical common
law concept of the jury as a body of one's peers do not prevail in this country.
Our notions of what a proper jury is have developed in harmony with our basic
concepts of a democratic society and a representative government. For 'It is part
of the established tradition in the use of juries as instruments of public justice
that the jury be a body truly representative of the community.' Smith v. Texas,
311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84.
63 Jurors in a federal court are to have the qualifications of those in the highest
court of the State, and they are to be selected by the clerk of the court and a
jury commissioner. Secs. 275, 276, Jud.Code, 28 U.S.C. secs. 411, 412, 28
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U.S.C.A. §§ 411, 412. This duty of selection may not be delegated. United
States v. Murphy, D.C., 224 F. 554; In re Petition for Special Grand Jury, D.C.,
50 F.2d 973. And, its exercise must always accord with the fact that the proper
functioning of the jury system, and, indeed, our democracy itself, requires that
the jury be a truly representative of the community', and not the organ of any
special group or class. If that requirement is observed, the officials charged
with choosing federal jurors may exercise some discretion to the end thatcompetent jurors may be called. But they must not allow the desire for
competent jurors to lead them into selections which do not comport with the
concept of the jury as a cross-section of the community. Tendencies, no matter
how slight, toward the selection of jurors by any method other than a process
which will insure a trial by a representative group are undermining processes
weakening the institution of jury trial, and should be sturdily resisted. That the
motives influencing such tendencies may be of the best must not blind us to the
dangers of allowing any encroachment whatsoever on this essential right. Stepsinnocently taken may one by one lead to the irretrievable impairment of
substantial liberties.
64 The deliberate selection of jurors from the membership of particular private
organizations definitely does not conform to the traditional requirements of jury
trial. No matter how high principled and imbued with a desire to inculcate
public virtue such organizations may be, the dangers inherent in such a method
of selection are the more real when the members of those organizations fromtraining or otherwise acquire a bias in favor of the prosecution. The jury
selected from the membership of such an organization is then not only the
organ of a special class, but, in addition, it is also openly partisan. If such
practices are to be countenanced, the hard won right of trial by jury becomes a
thing of doubtful value, lacking one of the essential characteristics that have
made it a cherished feature of our institutions.
65 So, if the picture in this case actually is as alleged in Glasser's affidavit, wewould be compelled to set aside the trial court's denial of the motion for a new
trial as a clear abuse of discretion, and order a new trial for all the petitioners.
But from the record before us we must conclude that petitioners' showing is
insufficient. The Government did not controvert the affidavits by counter-
affidavits or formal denial, and it does not appear from the record that any
argument was heard on them. From this petitioners argue that the allegations of
the affidavits are to be taken as true for the purpose of the motion. However,
this is not a case where the prosecution has impliedly, Neal v. Delaware, 103U.S. 370, 26 L.Ed. 567, or actually, Hale v. Kentucky, 303 U.S. 613, 58 S.Ct.
753, 82 L.Ed. 1050, stipulated that affidavits in support of a motion alleging the
improper constitution of a jury may be accepted as proof. In the absence of
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such a stipulation, it is incumbent on the moving party to introduce, or to offer,
distinct evidence in support of the motion; the formal affidavit alone, even
though uncontroverted, is not enough. Smith v. Mississippi, 162 U.S. 592, 16
S.Ct. 900, 40 L.Ed. 1082; Tarrance v. Florida, 188 U.S. 519, 23 S.Ct. 402, 47
L.Ed. 572; cf. Brownfield v. South Carolina, 189 U.S. 426, 23 S.Ct. 513, 47
L.Ed. 882. Glasser, in his affidavit, offered to prove the allegations contained
therein, but the record is barren of any actual tender of proof on his part.Furthermore, there is no indication that the court refused to entertain such an
offer, if it were in fact made. Roth did not even make an offer of proof in his
affidavit, and Kretske did not file one. While it is error to refuse to hear
evidence offered in support of allegations that a jury was improperly
constituted, Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839, there is,
and, on the state of this record, can be no assertion that such error was here
committed. The failure of petitioners to prove their contention is fatal.
66 We conclude that the conviction of Glasser must be set aside and the cause as
to him remanded to the District Court for the Eastern Division of the Northern
District of Illinois for a new trial. The convictions of petitioners Kretske and
Roth are in all respects upheld. It is so ordered.
67 Reversed and remanded in part and affirmed in part.
68 Mr. Justice JACKSON took no part in the consideration or decision of these
cases.
69 Mr. Justice FRANKFURTER.
70 The CHIEF JUSTICE and I are of opinion that the conviction of Glasser, as
well as that of his co-defendants, should stand.
71 It is a commonplace in the administration of criminal justice that the actualities
of a long trial are too often given a meretricious appearance on appeal; the
perspective of the living trial is lost in the search for error in a dead record. To
set aside the conviction of Glasser (a lawyer who served as an Assistant United
States Attorney for more than four years) after a trial lasting longer than a
month on the ground that he was denied the basic constitutional right 'to have
the assistance of counsel for his defence' is to give fresh point to this
regrettably familiar phenomenon. For Glasser himself made no such claim atany of the critical occasions throughout the proceedings. Neither when the
judge appointed Stewart to act as counsel for both Kretske and Glasser, nor at
any time during the long trial, nor in his motions to set aside the verdict and to
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arrest judgment, nor in his plea to the court before sentence was passed, nor in
setting forth his grounds for appeal, did Glasser assert, or manifest in any way a
belief, that he was denied the effective assistance of counsel. Not until twenty
weeks after Stewart had become counsel for the co-defendant Kretske, and
fifteen weeks after the trial had ended, did Glasser discover that he had been
deprived of his constitutional rights. This was obviously a lawyer's
afterthought. It does not promote respect for the Bill of Rights to turn such anafterthought into an imaginary injury that is reflected nowhere in the
contemporaneous record of the trial and make it the basis for reversal.
72 The guarantees of the Bill of Rights are not abstractions. Whether their
safeguards of liberty and dignity have been infringed in a particular case
depends upon the particular circumstances. The fact that Glasser is an attorney
of course does not mean that he is not entitled to the protection which is
afforded all persons by the Sixth Amendment. But the fact that he is an attorneywith special experience in criminal cases, and not a helpless illiterate, may be—
as we believe it to be here extremely relevant in determining whether he was
denied such protection.
73 In this light, what does the record show? Before the trial got under way the trial
judge was presented with a problem created by the inability of one of Kretske's
lawyers to try the case in his behalf. Kretske was dissatisfied with his other
lawyer, who professed to be unfamiliar with the many details of the case. UponKretske's motion for a continuance, the judge was faced with the difficulty of
avoiding either delay of the trial or an undesirable severance as to Kretske. All
the defendants, including Glasser, and their counsel were present in court. The
judge asked whether Stewart, who had been retained by Glasser, would be
prepared to act also for Kretske. The record gives no possible ground for any
inference other than that this suggestion came from the judge as a fair and
disinterested proposal to solve a not unfamiliar trial problem. It is not, and
indeed could not be, contended that the judge's suggestion, addressed to theconsideration of the defendants, was not wholly proper. And so, when Stewart
raised the question of a possible conflict of interest, and Glasser himself
objected, saying 'I would like to have my own lawyer representing me', the
judge neither remonstrated nor argued. He promptly dropped his suggestion and
directed Kretske's other lawyer, who was present but with whom Kretske was
dissatisfied, to stay in the case until Kretske could hire someone to his
satisfaction. The footnote sets forth the full text of this episode.1
74 There ensued a long discussion relating to the representation of Kretske. During
this discussion the judge never again adverted to his original suggestion that
Stewart also represent Kretske. Kretske interrupted, and there then occurred in
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Glasser's presence what is now made the basis for reversal:
75 'Mr. Kretske: I can end this. I just spoke to Mr. Stewart and he said if your
Honor wishes to appoint him I think we can accept the appointment.
76 'Mr. Stewart: As long as the Court knows the situation. I think there is
something to the fact that the jury knows we can't control that.
77 'Mr. McDonnell: Then the order is vacated?
78 'The Court: The order appointing Mr. McDonnell is vacated and Mr. Stewart is
appointed attorney for Mr. Kretske.'
79 It is clear, therefore, that this arrangement was voluntarily assumed by the parties, and was not pressed upon them by the judge. Glasser, who was present,
raised no objection and made no comment.
80 The requirement that timely objections be made to prejudicial rulings of a trial
judge often has the semblance of traps for the unwary and uninformed. But
Glasser was neither unwary nor uninformed. His experience in the prosecution
of criminal cases makes his silence here most significant. Nor was this the last
opportunity he had to indicate that embarrassment was being caused him byStewart's representation of Kretske, let alone that he deemed it a denial of his
constitutional rights. If he were laboring under a handicap, he would have made
it known at the times when he felt it most—during the long course of the trial,
in his motions for new trial and in arrest of judgment, in his extended plea to
the court before sentence was passed, and finally when, on April 26, 1940, over
his own signature he gave twenty grounds for appeal but did not mention this
one. The long period of uninterrupted silence concerning his after-discovered
injury negatives its existence. We find it difficult to know what acquiescence ina judge's ruling could be, if this record does not show it.2
81 A fair reading of the record thus precludes the inference that the judge forced
upon Glasser a situation which hobbled him in his defense. To be sure, he did
say at first that he would like his lawyer to represent him alone. But he plainly
acquiesced in the arrangement which, after consultation at the defense table,
was proposed to the trial judge and which the judge accepted. A conspiracy
trial presents complicated questions of strategy for the defense. There areadvantages and disadvantages in having separate counsel for each defendant or
a single counsel for more than one. Joint representation is a means of insuring
against reciprocal recrimination. A common defense often gives strength
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'If two or more persons conspire either to commit any offense against the
United States, or to defraud the United States in any manner or for any purpose,and one or more of such parties do any act to effect the object of the conspiracy,
each of the parties to such conspiracy shall be fined not more than $10,000, or
imprisoned not more than two years, or both.'
7 Cir., 116 F.2d 690.
Ill.Rev.Stat., 1939, c. 78, §§ 1 and 25.
Section 1 of Chapter 78 of the Illinois Revised Statutes, 1939, applies tocounties not having jury commissioners (into which class the 17 counties fall)
and provides:
against a common attack. These considerations could not have escaped a lawyer
of Glasser's experience. His thorough acquiescence in the proceedings cannot
be reconciled with a denial of his constitutional rights.
82 A belated showing that Glasser was actually prejudiced by the judge's action is
now attempted. This has two aspects: (1) Stewart's failure to cross-examine the
witness Brantman, and (2) his failure to make objections on behalf of Glasser tothe admission of certain evidence.
83 (1) The Brantman episode evaporates upon examination. His only testimony
relating to Glasser was that he did not know him. This was brought out fully
and distinctly on direct examination.3 That it had been amply established,
Glasser himself recognized in his address to the court before sentence. It is
difficult to understand how cross-examination would have been of any further
benefit to Glasser. In any event, the record shows that Stewart abstained fromcross-examining Brantman not because he felt himself inhibited by any conflict
of interest but because, as he told the judge after verdict, he thought that on
cross-examination Brantman 'would be telling worse lies'.
84 (2) It is said that Stewart's failure to object, on behalf of Glasser, to certain
evidence in itself proves that Stewart felt himself restricted—wholly regardless
of the admissibility of such evidence. No evidence inadmissible against Glasser
is avouched. Indeed we are told that it is 'beside the point' that the evidence is
admissible. Can it be that a lawyer who fails to make frivolous objections to
admissible evidence is thereby denying his client the constitutional right to the
assistance of counsel?
1
2
3
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'The county board of each county shall, at or before the time of its meeting, in
September, in each year, or at any time thereafter, when necessary for the
purpose of this Act, make a list of sufficient number, not less than one-tenth of
the legal voters of each sex of each town or precinct in the county, giving the
place of residence of each name on the list, to be known as a jury list.'
Elmer Swanson testified that when money was paid to Kretske in connectionwith the Stony Island still case Kretske said that part of it would go to 'Red or
Dan'. The witness understood this to refer to Glasser.
Frank Hodorowicz testified that he gave $800 in currency to Kretske to secure
favorable action with regard to a still at 124 East 118th Place. Kretske told
Frank he 'had to deliver the money to Red'. Hodorowicz knew this meant
Glasser. Frank attempted to 'fix' a case for Albina Zarrattini through Kretske
who declined after 'he talked to Red' because Zarrattini talked too much.
After Frank Hodorowicz was himself indicted he went to Kretske to 'fix' his
case. Kretske told him there was 'a lot of heat' on the case and 'They got
Glasser over a barrel, he can't do anything. He has to put you in jail.'
When Edward Dewes gave Kretske $100 so that he would not be indicted in
connection with a still at Spring Grove, Kretske told him 'he would send it over
to the red-head in the Federal Building.' The witness knew this meant Glasser.
Dewes also testified that Kretske told him that he, Kretske, had resigned fromthe United States attorney's office under pressure, and that 'for holding the bag',
he was to receive favors from the 'red-head'.
Stanley Wasielewski testified that he heard Kretske tell Stanley Slesur that 'I
will take care of everything between me and the red-head.' Both Wasielewski
and Slesur were involved in a still at Downers Grove.
Const., Art. III, § 2, cl. 3.
'Mr. Stewart: May I make this statement about that, judge? We were talking
about it—we were all trying to get along together. I filed an affidavit, or I did
on the behalf of Mr. Glasser pointing out some little inconsistency in the
defense, and the main part of it is this: There will be conversations here where
Mr. Glasser wasn't present, where people have seen Mr. Kretske and they have
talked about, that they gave money to take care of Glasser, that is not binding
on Mr. Glasser, and there is a divergency there, and Mr. Glasser feels that if I
would represent Mr. Kretske the jury would get an idea that they are together,and all the evidence—
'The Court: How would it be if I appointed you as attorney for Mr. Kretske?
5
6
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'Mr. Stewart: That would be for your Honor to decide.
'The Court: I know you are looking out for every possible legitimate defense
there is. Now, if the jury understood that while you were retained by Mr.
Glasser the Court appointed you at this late hour to represent Kretske, what
would be the effect of the jury on that?
'Mr. Stewart: Your Honor could judge that as well as I could.
'The Court: I think it would be favorable to the defendant Kretske.
'Mr. Glasser: I think it would be too, if he had Mr. Stewart. That's the reason I
got Mr. Stewart, but if a defendant who has a lawyer representing him is
allowed to enter an objection, I would like to enter my objection. I would like to
have my own lawyer representing me.
'The Court: Mr. McDonnell, you will have to stay in it until Mr. Kretske gets
another lawyer, if he isn't satisfied with you. (To Mr. Kretske) Mr. Kretske, if
yu are not satisfied with Mr. McDonnell, you will have to hire another lawyer.
We will proceed with the selection of the jury now.'
Stewart was designated to represent Kretske on February 6, 1940, when the
trial began. The jury brought in its verdict on March 8. The motions for new
trial and in arrest of judgment were denied on April 23, and on the same daythe defendants were sentenced. On April 26, Glasser filed a notice setting forth
twenty grounds of appeal without suggesting that he had been denied his right
to the assistance of counsel. On June 27, Glasser and the two other petitioners
filed a 'joint and several assignment of errors', for the first time asserting that:
'The court erred in appointing the employed counsel of defendant Daniel D.
Glasser to represent defendant Norton I. Kretske, to the prejudice of the
defendants.'
'Q. Do you know Mr. Glasser? A. No, sir.
'Q. Did you ever see him before the time you got this money? A. I have seen
him, I think I might have been introduced to the man once, but I don't think it
was before I got that money.
'Q. You never had any conversation with him in any event? A. No sir.
'Q. What? A. No, sir.'
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